Survey of Common Legal, Financial and Medical Issues Facing the Aging Client and Recommended Practices in Offering Solutions Estate Planning Council of Birmingham, Inc. February 4, 2016 Lynn Campisi LYNN CAMPISI, P.C. 3008 Pump House Road Birmingham, AL 35243 (205) 967-1010 NO REPRESENTATION IS MADE THAT THE QUALITY OF THE LEGAL SERVICES TO BE PERFORMED IS GREATER THAN THE QUALITY OF LEGAL SERVICES PERFORMED BY OTHER LAWYERS . 1
47
Embed
Survey of Common Legal, Financial and Medical Issues Facing the Aging Client and Recommended Practices in Offering Solutions Estate Planning Council of.
LegalFinancialMedical CapacityNest Egg Required for Financial Independence Affordability ControlAccessibility ConflictPublic Benefits When The Well Runs Dry Compliant Behavior 3
Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Survey of Common Legal, Financial and Medical Issues Facing the Aging Client and Recommended Practices in
Offering Solutions
Estate Planning Council of Birmingham, Inc.February 4, 2016
Lynn CampisiLYNN CAMPISI, P.C.
3008 Pump House RoadBirmingham, AL 35243
(205) 967-1010NO REPRESENTATION IS MADE THAT THE QUALITY OF THE LEGAL SERVICES TO BE PERFORMED IS GREATER THAN THE QUALITY OF LEGAL SERVICES PERFORMED BY OTHER LAWYERS. 1
Elder Care Serving specific needs of the
aging client Legal – delegation of authority &
protection of person and property Financial – resources, public
benefits & insurance Medical – levels of care & related
costs
2
Legal Financial MedicalCapacity Nest Egg
Required for Financial Independence
Affordability
Control Accessibility
Conflict Public Benefits When The Well Runs Dry
Compliant Behavior
3
Legal IssuesCapacity
Understanding transaction Medical Testimony not conclusive - must be
weighed with all other evidenceControl
Authority- Decision Maker Powers of Attorney Oversight and Sanctions
Conflict Between Principal and Agent Among Family Members Outsiders 4
Capacity Common Sense Judgments The $20.00 Question
Money for a Loaf of Bread
Top Off With Doctor’s Letter
5
Control…Who Decides?Healthcare Financial
Individual Individual
Healthcare Proxy Agent under Power of Attorney
(CONFLICT)
Guardian Conservator
6
Control Who Decides (cont.)Healthcare Financial
OtherPayee under Social Security
Fiduciary under VA
Protective Placement By DHR Conservator Usually Appointed
Probate – Commitment and Temporary Geriatric PsychiatricPlacement
7
Oversight & Sanctions Provide oversight provisions in Powers of
Attorney and Trust Documents Breach of Fiduciary Duty for Agent, Trustee or
Conservator Protecting Alabama’s Elders Act – Ala. Code
§13A-6-190, et seq.● Seven (7) Year Statute of Limitation for Financial
Exploitation● Criminal Charges of Elder Abuse and Neglect Imposed
for Emotional Abuse, Financial Exploitation, Intimidation, Neglect or Undue Influence
8
Solutions Plan Early Persuasion Precedes Court Legal Structures in Place to Minimize
Conflict and Court Intervention Estate Planning Documents
Financial and Health Power of Attorney
Trusts Last Will and Testament
9
Financial Power of Attorney Alabama Uniform Power of Attorney
Act – applies to all powers of attorney executed on or after January 1, 2012
Presumed durable unless expressly terminated by incapacity Best to include specific durable
language
10
Financial Power of Attorney (cont.) Grant of authority for one or all of the
powers enumerated in the statute Real Property Tangible Personal Property Stocks and Bonds Commodities and Options Banks and Other Financial Institutions Operation of Entity or Business Insurance and Annuities Estates, Trusts, and Other Beneficial Interests Claims and Litigation Personal and Family Maintenance Benefits from Governmental Programs or Civil or Military
Service Retirement Plans Taxes Gifts 1
1
“Hot” Powers Create, amend, revoke, or terminate an inter
vivos trust, by trust or applicable law
Make a gift to which exceeds the monetary limitations of Section 26-1A-217 of the Alabama Uniform Power of Attorney Act, but subject to any special instructions in this power of attorney
Create or change rights of survivorship
Create or change a beneficiary designation12
“Hot” Powers (cont.) Authorize another person to exercise the
authority granted under this power of attorney
Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
Exercise fiduciary powers that the principal has authority to delegate
13
Appointment of Agent Single agent
Successor agent
Co-agents Default allows joint & several action by
co-agents Requirement of joint actions must be
specifically stated
14
When Effective?
Immediately – power is effective immediately unless otherwise noted
Springing – effective upon incapacity Principal may name person to
determine incapacity
15
Formality Signed by Principal in presence of
attesting Notary Public Signature is presumed genuine if
notarized
Photocopy has same legal effect as original document
16
Advance Directive for Health Care: End of Life Decisions
Falls under Alabama Natural Death Act
Part 1 – Living Will
Part 2 – Appoint Proxy
17
Advance Directive for Health Care(Part 1: Living Will)
Allows you to clearly specify in writing what medical treatments and/or life support measures you do or do not want during a future terminal illness or a persistent vegetative state
“Terminally Ill or Injured”
“Permanently Unconscious”
18
Advance Directive for Health Care(Part 2: Appoint Proxy)
Allows you to delegate someone (called a health care proxy or agent) in writing to make medical decisions for you if you are unable to make those decisions for yourself Temporary Situations
under anesthesia during routine surgery
Permanent Situations dementia, mental incapacity
Should add HIPAA release of medical information19
Health Care Power of Attorney Falls under Alabama Uniform Power of
Attorney Act – applies to all powers of attorney executed on or after January 1, 2012
May delegate end of life decisions Signed by Principal in presence of two
witnesses Photocopy has same legal effect as
original document
20
Beneficiary Designation Forms Your Last Will and Testament only controls
your probate assets Many of us have non-probate assets such as:
Life insurance 401(k) plans Individual retirement accounts (IRA) POD & TOD accounts
For non-probate assets, make certain that your beneficiary designation forms reflect your current wishes.
CAUTION: An individual, trust (with qualifiers) or charity is always a better named beneficiary than your estate.
2015 Income Cap = $1,001.00 Individual / $1,348.00 Couple Pays Medicare Part B Premium = $104.90 per month Pays Medicare Part A Hospital Deductible = $1,288.00 per benefit period Pays Medicare Part B Physician Deductible = $166.00 Pays Medicare Part A premium ($411.00) unless you get free Part A Pays Medicare Co-Insurance = 20%
Specified Low Income Medicare Beneficiary Program (SLMB) Income Cap = $1,197.00 Individual / $1,613.00 Couple Pays Medicare Part B Premium = $104.90 per month
Qualifying Individual (QI–1) Income Cap = $1,345.00 Individual / $1,813.00 Couple Pays Medicare Part B Premium = $104.90
Caps change in February each year38
Insurance Health – Medicare, group & retiree health,
supplemental & prescription drugs
Long Term Care – covers home care, assisted living & nursing home
Medicaid – allows additional exempt resources equal to benefits paid for nursing home costs paid by long term care insurance Ex: LTC pays $3,000/month x 36 months =